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Brady and Giglio

Brady-Giglio Protocols Regarding Evidence in Federal Criminal Trials

The U.S. Constitution guarantees the right to a fair trial if you're accused of a crime. Part of ensuring that right means that during the discovery process, prosecutors must disclose evidence they have that might exonerate you.

They also must reveal if they are using witnesses that are potentially "impeachable,"—meaning their testimony may or may not be credible.

The Brady/Giglio Policy refers to two United States Supreme Court decisions that help protect the right to a fair trial guaranteed by the U.S. Constitution.

Brady-Giglio Protocols Regarding Evidence in Federal Criminal Trials
Under the Brady-Giglio policy, federal prosecutors must disclose evidence that might exonerate you.

The policy seeks full cooperation of law enforcement in gathering and disclosing Brady/Giglio information to the court and, ultimately, the defendant when such information is material and relevant to their case.

In Brady v. Maryland and Giglio v. United States, the Supreme Court recognized that two types of evidence are of such value to a defendant that fairness requires it to be disclosed.

Thus, withholding this information from an accused person risks inviting sanctions, the suppression of evidence, the dismissal of charges, or the reversal of a conviction.

In 1963, the Supreme Court issued its landmark decision in Brady v. Maryland, holding that a prosecutor's suppression of favorable material evidence violates the Constitution's Due Process Clause, regardless of the prosecutor's intent.

Brady entitles an accused person to all favorable material evidence, either guilt or punishment. Giglio entitles an accused person to all material evidence affecting the credibility of any witness who may well be determinative of guilt or innocence.

These requirements have collectively become known as the Brady/Giglio protocols for evidence. Let's delve deeper into the Brady/Giglio Rules to see how they can impact your federal criminal case.

What are the Brady-Giglio Protocols?

The Brady/Giglio protocols derive their name from two landmark Supreme Court cases: Brady v. Maryland (1963) and Giglio v. United States (1972). These cases established the prosecutor's duty to disclose evidence favorable to the defendant and material to their guilt or punishment.

This includes both exculpatory and impeachment evidence. These rules are crucial to ensuring fairness in the criminal process. They prevent the prosecution from withholding evidence that could potentially exonerate the defendant or cast doubt on the prosecutor's case.

What is the Brady-Giglio Policy?
The Brady/Giglio protocols get their name from two landmark U.S. Supreme Court cases.

Under the Brady-Giglio protocols, prosecutors have a constitutional obligation to disclose all exculpatory and impeachment evidence to the defense during the discovery phase.

This duty applies regardless of whether the defense requests it. Failure to fulfill this obligation can violate the defendant's right to due process, leading to overturned convictions and potential disciplinary action against the prosecutor.

Although a prosecutor's obligation to produce exculpatory evidence is firmly established law, some high-profile cases increased awareness and highlighted concerns about whether prosecutors faithfully discharge their obligation to produce exculpatory evidence or engage in other forms of misconduct.

The Department of Justice (DOJ) has released a series of memoranda outlining the procedures federal prosecutors must follow to comply with their legal and ethical obligations to produce exculpatory and impeachment evidence and ensure that all federal criminal defendants receive a fair trial.

What is Exculpatory Evidence?

Exculpatory evidence refers to any information or evidence that is material to the defendant's case that may favor the defendant by suggesting their innocence or mitigating their culpability about the charges against them.

This evidence can come in various forms, including witness testimonies, physical artifacts, or data, and it can directly dispute factual assertions of the prosecution or contradict their narrative.

What Is Impeachment Evidence?

Impeachment evidence refers to any information that can challenge or undermine the credibility of a witness's testimony. This could include prior inconsistent statements, evidence of character flaws, or past criminal convictions.

The prosecution must disclose impeachment evidence on any government witness it plans to use in its case. This information empowers the defense to cast doubt on the witness's veracity or recall accuracy during cross-examinations.

What Is a "Brady List?"

A Brady list is a record typically maintained by a prosecutor's office or police department. It contains the names and details of law enforcement officers who have had credibility, integrity, or misconduct issues that could affect their court testimony.

The list can include dishonest officers, a history of excessive force, or other disciplinary issues that could affect their credibility in court.

If an officer on the prosecutor's Brady list is involved in a case, the prosecutor must inform the defense about the officer's past issues as they may be relevant for impeaching the officer's testimony.

In Giglio v. United States, the Supreme Court extended the Brady rule to impeachment evidence, ruling that a prosecutor's failure to disclose a promise of leniency allegedly made to an unindicted co-conspirator who was a key witness at the defendant's trial violated the Constitution's Due Process Clause.

What is the Importance of Brady-Giglio Evidence for Your Defense?

The information disclosed under Brady-Giglio may be vital to your defense strategy in a federal criminal case. Your criminal defense attorney can use it for several purposes:

  • Witness Impeachment: Impeachment evidence can be used to challenge the credibility of prosecution witnesses. For example, suppose a key witness has a history of dishonesty or has received benefits in exchange for their testimony. In that case, this information can be used to cast doubt on their credibility at trial.
  • Response to Prosecutor Arguments: Exculpatory evidence can help your attorney counter the prosecution's arguments. If the prosecution argues, for example, that you were at the crime scene, but they have evidence showing you were elsewhere, this can be a powerful rebuttal.
  • Judgment Based on All Available Information: Any criminal trial aims to determine the truth. The Brady-Giglio protocols ensure that the jury can make an informed judgment based on all available information by ensuring all relevant evidence is disclosed.

What Are the Consequences of Non-Disclosure?

Failure to disclose Brady-Giglio evidence can seriously affect the prosecution's case. For example, if it is discovered after a conviction that the prosecution withheld exculpatory evidence, your conviction may be overturned.

Additionally, suppressing this evidence violates your civil rights; you may be entitled to damages.

Contact our federal criminal defense law firm for a case review and to discuss legal options. Eisner Gorin LLP has offices in Los Angeles, California.

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